What is the benefit of being in separate rooms during mediation?
Foley Family Law has done close to a thousand mediations, most of which have been conducted in separate rooms. Being in a separate room is often more conducive to mediation. It gives the clients a better opportunity to ask the questions they need to ask rather than having their spouse/other parent staring at them and listening to every single word said to our client or that our clients say to us.
Another reason for being in a separate room is that in a normal divorce, a lot of times, judges will ask you that as hard as this is going through this process of divorce, you try to think more with your brain and less with your heart. So in a mediation, you’re sitting at a table staring at your spouse in the eyes and trying to agree on who will keep the Halloween decorations. Even these types of arguments can spiral out of control. Spoons, RVs, cars, patio furniture, dogs, and Christmas decorations can always be items for discussion and, unfortunately, immense disagreement. Again, if it’s in a separate room and the emotional part is kept at bay at least a little bit, it seems to help these situations.
Additionally, in the heat of the moment, parties (sometimes even attorneys) get very angry and sometimes aggressive and, as we’ve personally seen, almost began to become physical. Therefore, if you’re not in the same room, it drastically cuts down on the number of punches that are going to be thrown across the table at you or your attorney. This may seem extreme, but love and hate, unfortunately, are very close partners within our spectrum of emotions.
Additionally, the mediator can hold confidential the discussion you have in a separate room with the mediator. So things can be stated to the mediator, which can then be confidential and won’t be expressed when the mediator goes to the next room, and they can do the same.
This does not happen in a mediation where everyone is sitting in the same room; unless you are an expert whisperer, everybody’s going to know what you’re saying. So that is why nine times out of ten, we advocate/suggest mediation in separate rooms, and again the setup is that you’re in a room with your attorney. The other side is in the room with their attorney in another room, and a mediator goes back and forth.
The process for a separate mediation (caucused mediation) is that they give their opening talk to both parties separately. Then they start with the petitioner normally and take the offer from the petitioner, go to the next room, and then a counteroffer is given. Then you go back and forth until you either have an impasse (the parties decide that they are going to have the court resolve it) or everyone comes to an agreement. It can be drawn up at the time of the mediation, or one of the attorneys can draw it up after the mediation.
Speak to your attorneys about the benefits of having mediation in the same room with the other party or whether mediating in separate rooms may be more beneficial.